When can, and should, an employer suspend an employee?

Suspending an employee can be a necessary step for an employer to take, but it is a sensitive area, particularly if there are allegations of misconduct or risks to the workplace. Whilst suspension can help protect the integrity of a workplace investigation, ensure safety, or prevent business disruption, there are legal considerations and best practices for handling the process fairly and lawfully.

The Advisory, Conciliation and Arbitration Service (Acas) has issued guidance on best practice for employers to follow when considering the suspension of an employee pending a workplace investigation. 

Deciding whether to suspend

An employer will need to assess the situation carefully when deciding whether to suspend an employee. The Acas guidance states that suspension should not be automatic and should not be used to discipline an employee; rather, suspension is a neutral investigative measure. If a decision to suspend is later found to be unreasonable, the employer may be in breach of contract, which may give rise to a potential claim by the employee.

An employer should consider the implications of a suspension for the employee: being suspended can be extremely stressful for an employee and can adversely impact their mental health. It may also impact working relationships within the organisation. Suspension should therefore be an option of last resort. Before making the decision whether to suspend, an employer should start to gather information about what has happened, the parties involved, and the nature of any behaviours and allegations.

Suspension can be justified if an employer reasonably believes that it is necessary to protect the employee, evidence or witnesses, or other staff, or if there is a genuine risk to customers, property or business interests.

An employer should consider any alternatives to suspension, such as moving the employee to a different department in the organisation or to a different work section, or allowing them to work remotely or on different shift patterns. If one employee has made a complaint against another employee, care should be taken to ensure that the person who made the complaint is not treated unfavourably by reason of having made the complaint, otherwise this may give rise to potential claims against the employer.

If there are other bodies involved, such as the police or regulatory bodies, regard should be had to their findings and processes.

If a decision is made not to not suspend, that decision can be changed later in the investigation if circumstances change.

If a decision is made to suspend

If a decision is taken to suspend, it will be important for the employer to:

• Support the mental health of the employee (and the complainant, if any) during the suspension.
• Keep the term of the suspension as short as possible, and periodically review it. The longer the suspension, the greater the risk that it will affect the employee’s health and wellbeing, become unreasonable to continue the suspension, and lead to a breakdown in trust, potentially giving rise to a claim against the employer.
• Communicate clearly with the employee and provide to the employee in writing: a copy of the organisation’s suspension policy (if any), the reason why they have been suspended, an explanation that the suspension does not mean that they have done something wrong, the anticipated duration of the suspension, the next steps that will follow, the pay and benefits that they will receive during the suspension, what steps they can and should take, and the support available to them.
• Pay full salary and normal benefits (unless the employer’s contract of employment expressly states otherwise). Deducting pay without a lawful reason or contractual basis may lead to a claim for unlawful deductions.
• Keep full documentary records in respect of any investigation, any steps taken, and any communications with the employee or other parties.
• Keep the suspension confidential wherever possible; if not, the employer could be in breach of contract.
• Be alert to treating the employee differently to other employees. Differential treatment may give rise to a claim against the employer.

Organisations must handle employee suspensions with care: any suspension should be exceptional, reasonable, paid, short, and supportive. Expert advice taken early can help employers to avoid the pitfalls surrounding workplace suspensions and investigations.

If you have any questions or concerns about suspending and employee or conducting a workplace investigation, please contact our Employment team.